Gibson Fizuli Mbhigho v Kenya Revenue Authority & another [2021] KEELRC 2141 (KLR)
The bottom line
#Kenya's Employment Court ordered KRA to pay a former officer Kshs 2.5 million after finding his prosecution and arrest were unjustified.
What this practically means
#Executive summary
#Key legal issues
#Whether prosecution was brought without reasonable and probable cause
Yes - investigation did not link the Claimant to any cognisable offence; the arrest and arraignment were rushed without disclosure of allegations, and the trial court fully absolved the Claimant
The Court found Too could not lay a basis for reasonable and probable cause: no statement recorded from the Claimant at arrest, no disclosure of the goods, value of unpaid duty or statutory provision breached, selective charging of officers, and continued prosecution even after the 1st Respondent's own disciplinary panel found investigations incomplete. The criminal trial court found no breach of duty by the Claimant.
Whether the Claimant was wrongfully arrested and falsely imprisoned
Yes - detention for about 4 hours without communication of any complaint or lawful justification constituted false imprisonment
Too detained the Claimant in the morning of 3rd August 2004 without officially communicating any complaint and without a recorded statement, arraigning him that afternoon. The absence of a holding cell does not negate wrongful arrest; restraint without lawful justification suffices, however brief.
Whether proceedings terminated in the Claimant's favour and he suffered damage
Yes - he was acquitted on 28th September 2007 with a finding of no breach of duty, and lost a 27-year career, suffered reputational injury and remained unemployable
The acquittal, the trial court's finding of no fault, and the Claimant's loss of employment after 27 years of unblemished service, plus failure to find alternative employment 11 years later, established damage. Malice was further inferred from differential treatment of co-accused officers.
Entitlement to salary for the suspension period and pension
Salary for 5 months' suspension awarded based on the HR Manager's concession; declaratory order on pension entitlements
Agata conceded the Claimant was entitled to salary for the suspension period irrespective of manner of termination, computed at Kshs. 59,477 monthly for 5 months = Kshs. 297,385. Pension documentation was unclear, so a declaration issued that he was entitled to his contribution and the employer's contribution on attaining 50 years.
Legal principles established
#- Reasonable and probable cause means an honest belief in the guilt of the accused founded on reasonable grounds
- The Court must be satisfied that the Respondent verified facts through an enquiry commensurate with the charges
- Acquittal is not per se sufficient to establish malicious prosecution but supports the claim with other factors
- Investigations not carried out fairly, objectively and exhaustively may amount to negligent investigation
- False imprisonment comprises restraint without lawful justification regardless of the place of detention
- Malice can be inferred from the hurried and flippant manner in which the prosecution acted
Court orders
#- 1.The 1st Respondent shall pay to the Claimant salary for 5 months under suspension, at Kshs. 297,385
- 2.The Respondents shall jointly and severally pay to the Claimant general damages for malicious prosecution, wrongful and false imprisonment at Kshs. 2,500,000
- 3.Declared that the Claimant was entitled to his pension contribution on dismissal and to the 1st Respondent's contribution, on attainment of the age of 50 years
- 4.Costs to the Claimant, to be paid by the 1st Respondent
- 5.Interest allowed at court rate as prayed, from the date of Judgment
- Jurisdiction invoked
- Transferred to the Industrial Court (Employment & Labour Relations Court) at Mombasa by order of the High Court dated 17th November 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gibson Fizuli Mbhigho v Kenya Revenue Authority & another [2021] KEELRC 2141 (KLR)", Case Analysis (2021). Not stated in the excerpt (originally High Court Mombasa, transferred 17th November 2014 to Industrial Court Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2141/eng@2021-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.